Legal Instruments – Adopted in Malabo – July 2014

194 Pages·2014·1.5 MB·English

by  Camara Fafre

AFRICAN UNION UNION AFRICAINE
UNIÃO AFRICANA

Addis Ababa, ETHIOPIA P. O. Box 3243 Telephone: 517 700 Fax: 5130 36
website: www. www.au.int

EXECUTIVE COUNCIL
Twenty-Fifth Ordinary Session
20 - 24 June 2014
Malabo, EQUATORIAL GUINEA

EX.CL/846(XXV)
Original: English

THE REPORT, THE DRAFT LEGAL INSTRUMENTS AND
RECOMMENDATIONS OF THE SPECIALIZED TECHNICAL
COMMITTEE ON JUSTICE AND LEGAL AFFAIRS
EX.CL/846(XXV)
Page 1

THE REPORT, THE DRAFT LEGAL INSTRUMENTS AND RECOMMENDATIONS
OF THE SPECIALIZED TECHNICAL COMMITTEE ON
JUSTICE AND LEGAL AFFAIRS

1. The First Meeting of the Specialised Technical Committee (STC) on Justice and
Legal Affairs (former Conference of Ministers of Justice/Attorneys or Keepers of the
Seal from Member States but now including Ministers responsible for issues such as
human rights, constitutionalism and rule of law) was held in Addis Ababa, Ethiopia, from
6 to 14 May 2014 (Experts) and 15-16 May 2014 (Ministers).

2. The First Ministerial Session of the STC was attended by thirty eight (38)
Member States, two (2) AU Organs and one (1) Regional Economic Community (REC).

3. The purpose of the meeting was to finalize seven (7) Draft Legal Instruments
prior to their submission to and adoption by the Policy Organs.

4. Consequently, the STC considered the following Draft Legal Instruments:

a) Draft African Union Convention on Cross-border Cooperation (Niamey
Convention);
b) Draft African Charter on the Values and Principles of Decentralization, Local
Governance and Local Development;
c) Draft Protocol and Statute on the Establishment of the African Monetary
Fund;
d) Draft African Union Convention on Cyber-Security and Protection of
Personal Data;
e) Draft Protocol on Amendments to the Protocol on the Statute of the African
Court of Justice and Human Rights;
f) Draft Protocol to the Constitutive Act of the African Union on the Pan-
African Parliament; and
g) Draft Rules of Procedure of the Specialized Technical Committee (STC) on
Justice and Legal Affairs.
5. The Ministerial Session of the STC on Justice and Legal Affairs adopted the
above-mentioned Draft Legal Instruments and made recommendations to the Assembly
of the Union through the Executive Council for consideration and adoption.

6. The Report containing Recommendations and the Draft Legal Instruments
adopted by the STC on Justice and Legal Affairs are attached hereto as annexes.
AFRICAN UNION UNION AFRICAINE

UNIÃO AFRICANA

Addis Ababa, Ethiopia P. O. Box 3243 Telephone: [phone] Fax: [phone]
Website: www. Africa-union.org

First Ministerial Meeting of the Specialized Technical Committee
on Justice and Legal Affairs
15 and 16 May 2014
Addis Ababa, Ethiopia

STC/Legal/Min/Rpt.
Original: English

REPORT
STC/Legal/Min/Rpt.
Page 1

REPORT

I. INTRODUCTION

1. Pursuant to Decision Assembly/AU/Dec.365(XVII) adopted by the 17th Ordinary
Session of the Assembly of the African Union held in Malabo, Equatorial Guinea, in July
2011, and the Decision EX. CL/Dec.701(XXI) adopted by the 21st Ordinary Session of
the Executive Council of the African Union held in Addis Ababa, Ethiopia, in July 2012,
the African Union Commission convened the first Ministerial Meeting of the Specialized
Technical Committee (STC) on Justice and Legal Affairs to consider various Draft Legal
instruments. The STC on Justice and Legal Affairs comprises Ministers of Justice and
Attorneys General or Keepers of the Seals, Ministers responsible for Human Rights,
Constitutionalism and the rule of law.

II. ATTENDANCE

2. The following Member States were in attendance:

Algeria, Angola, Benin, Botswana, Burkina Faso, Burundi, Cameroon, Chad,
Congo, , DR Congo, Djibouti, Eritrea, Ethiopia, Gambia, Ghana, Guinea,
Kenya, Lesotho, Liberia, Libya, Malawi, Mali, Mauritania, Mauritius,
Mozambique, Namibia, Nigeria, Niger, Rwanda, SADR, Senegal, South
Africa, Sudan, Tanzania, Togo, Tunisia, Zambia and Zimbabwe.

3. The meeting was also attended by the following: the African Court on Human and
Peoples’  Rights  (AfCHPR),  the  Pan  African  Parliament  (PAP),  the  Common  Market  for  
Eastern and Southern Africa (COMESA).

III. OPENING OF THE MEETING

Statement by the Deputy Chairperson of the AU Commission

4. In his opening remarks the Deputy Chairperson of the AU Commission, H.E. Mr.
Erastus Mwencha, on behalf of the Chairperson, H.E. Dr. Nkosazana Dlamini Zuma,
welcomed all the honourable Ministers and delegations to the capital of Ethiopia and
indeed of Africa for the inaugural session of the STC on Justice and Legal Affairs. He
stated that the on-going developments in this city, just as in many others in Africa, bear
witness to the integration of Africa and its determination to achieve the objective of Unity
and Integration of the continent.

5. In his brief, he brought to the attention of the Honourable Ministers some of the
the documents at hand; in particular, he pointed out that the Draft Protocol on the
Establishment of the African Monetary Fund (AMF) aimed to foster macroeconomic
stability, sustainable shared economic growth and balanced progress in the region; the
Draft African Union Convention on Cross-Border Cooperation aimed to strengthen co-
operation in border management and development; the draft African Union Cyber-
Security Convention aimed to bolster existing Information and Communications
STC/Legal/Min/Rpt.
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legislations of Member States and the Regional Economic Communities; the Draft
Protocol to the Constitutive Act of the African Union relating to the Pan African
Parliament, with respect to the legislative and oversight powers of the Parliament and
the Draft Protocol on Amendments to the Protocol on the Statute of the African Court of
Justice and Human Rights, with the objective of expanding the jurisdiction of the current
African Court to try international crimes.

6. In his concluding remarks he thanked the Honourable Ministers and delegations
for their presence and wished them fruitful and successful deliberations that will be able
to resolve some of the long outstanding issues, in order to ensure that the Draft
Protocols are adopted and Africa is provided with credible mechanisms to deal with its
own issues.

IV. ELECTION OF THE BUREAU

7. After consultations, the meeting elected the following Bureau:

Chair: Cameroon
1st Vice Chair: Lesotho
2nd Vice Chair: Niger
3rd Vice Chair: Mauritania
Rapporteur: Rwanda

V. CONSIDERATION AND ADOPTION OF THE DRAFT AGENDA

8. The meeting adopted the draft Agenda without amendments, as follows:

1) Opening Ceremony

2) Election of the Bureau

3) Consideration and Adoption of the Draft Agenda

4) Organization of Work

5) Presentation and consideration of the Report of the meeting of the Legal
Experts of the STC on Justice and Legal Affairs

6) Consideration of the draft legal instruments:

i) Draft African Union Convention on Cross-border Cooperation (Niamey
Convention);

ii) Draft African Charter on the Values and Principles of Decentralization,
Local Governance and Local Development;
STC/Legal/Min/Rpt.
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iii) Draft Protocol and Statute on the Establishment of the African
Monetary Fund;

iv) Draft African Union Convention on Cyber-Security and Protection of
Personal Data;

v) Draft Protocol on Amendments to the Protocol on the Statute of the
African Court of Justice and Human Rights;

vi) Draft Protocol to the Constitutive Act of the African Union on the Pan-
African Parliament;

vii) Draft Rules of Procedure of the Specialized Technical Committee
(STC) on Justice and Legal Affairs; and

viii) Draft African Model Law on Biosafety.

7) Any Other Business

8) Adoption of the draft legal instruments and the Report

9) Closing Ceremony

VI. ORGANISATION OF WORK

9. The meeting adopted its organisation of work as follows:

(cid:120) Morning: 10.00 to 13.00
(cid:120) Afternoon: 14.30 to 18.00

VII. PRESENTATION AND CONSIDERATION OF THE REPORT OF GOVERNMENT
LEGAL EXPERTS OF THE STC ON JUSTICE AND LEGAL AFFAIRS

10. The Chairperson of the meeting of Government Legal Experts, Mr. Charles
Tchatchouang presented the Report of the meeting that took place from 6 to 14 May
2014. He concluded his presentation by highlighting the major conclusions and
recommendations, which were being submitted for consideration by the Ministerial
Session of the STC on Justice and Legal Affairs.

11. Following this presentation, the following comments and observations were
made:

i) The Sudan removed its reservation on Paragraph 77 of the Report of
Government Legal Experts which it previously entered in regard to Article
28(E) (3) of the Draft Protocol on the Statute of the African Court of Justice
and Human Rights relating to the phenomenon of popular uprising;
STC/Legal/Min/Rpt.
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ii) The Date of the Meeting of the Conference of Ministers of ICT must be
reflected in Paragraph 63 of the Report of Government Legal Experts;

iii) Paragraph 74 of the English version of the Report of Legal Experts relating
to the proposal from the Working group on looking at the phenomenon of
popular uprisings should be aligned with the French version which gives
wider interpretation than the English one;

iv) Paragraph 25 of the Report of Experts Meeting should be amended in order
to reflect properly the proposal of the President of the Republic of Senegal
on the establishment of a Supreme Council of Local Communities which was
approved in principle and endorsed by the Assembly of the Union in January
2013.

12. Following the observations and comments, the Ministerial Session of the STC on
Justice and Legal Affairs took note of the Report of Government Legal Experts Meeting.

VIII. CONSIDERATION OF THE DRAFT AFRICAN UNION CONVENTION ON
CROSS-BORDER COOPERATION (NIAMEY CONVENTION)

13. The Legal Counsel presented the Draft Convention on Cross-Border Cooperation
(Niamey Convention). Following this presentation, the meeting considered the Draft
Convention.

14. At the end of its deliberations, the meeting adopted the Draft Convention without
amendments and recommended it for consideration by the Assembly through the
Executive Council.

IX. CONSIDERATION OF THE DRAFT AFRICAN CHARTER ON THE VALUES
AND PRINCIPLES OF DECENTRALIZATION, LOCAL GOVERNANCE AND
LOCAL DEVELOPMENT

15. The Legal Counsel presented the Draft African Charter on the Values and
Principles of Decentralization, Local Governance and Local Development.

16. Following this presentation, the meeting considered and adopted the Draft
Charter and recommended it for consideration by the Assembly through the Executive
Council.

X. CONSIDERATION OF THE DRAFT PROTOCOL AND DRAFT STATUTE ON
THE ESTABLISHMENT OF THE AFRICAN MONETARY FUND

17. The Legal Counsel presented the Draft Protocol and draft Statute on the
Establishment of the African Monetary Fund.
STC/Legal/Min/Rpt.
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18. Following this presentation, the meeting considered and adopted the Draft
Protocol and draft Statute on the Establishment of the African Monetary Fund and
recommended it for consideration by the Assembly through the Executive Council.

XI. CONSIDERATION OF THE DRAFT AFRICAN UNION CONVENTION ON
CYBERSECURITY AND PERSONAL DATA PROTECTION

19. The Legal Counsel presented the Draft African Union Convention on Cyber-
security and Personal Data Protection.

20. Following the presentation, the meeting considered and adopted the Draft
Convention and recommended it for consideration by the Assembly through the
Executive Council

XII. CONSIDERATION OF THE DRAFT PROTOCOL ON AMENDMENTS TO THE
PROTOCOL ON THE STATUTE OF THE AFRICAN COURT OF JUSTICE AND
HUMAN RIGHTS

21. In introducing the Draft Protocol on Amendments to the Protocol of the African
Court of Justice and Human and Peoples’  Rights,  the  Legal  Counsel  highlighted  the  two  
outstanding Articles to be considered by the meeting, namely Article 28 E and 46A Bis,
as well as the minor technical improvements that the Commission had made to the Draft
Protocol and Statute, which had been endorsed by the Meeting of Experts.

Consideration of Article 28E – The Crime of Unconstitutional Change of
Government

22. After the presentation, the meeting made the following observations and
comments:

i) Some Delegations raised concerns regarding including the phenomenon of
“popular  uprising”  in  the  draft  Protocol  when  it  had  not  yet  been  defined  by  
the Peace and Security Council. Other Delegations observed it was
precisely because the Peace and Security Council had not defined the
phenomenon that such a provision was required;

ii) The proposed paragraph (3) should therefore be deleted in view of a lack of
consensus on the need to have the provision in the Draft Protocol.

23. After extensive deliberations, and because of the lack of a consensus on the what
constituted the phenomenon of popular uprising within the context of unconstitutional
changes of government, the meeting agreed to delete paragraph (3) until the Peace and
Security   Council   had   defined   “popular   uprising”   in   the   context   of   unconstitutional  
changes of government and the said definition had been endorsed by the Assembly.
The meeting encouraged the Peace and Security Council to take urgent measures to
define popular uprising within the context of unconstitutional changes of government.
STC/Legal/Min/Rpt.
Page 6

Consideration of Article 46A bis – Immunities

24. The Legal Counsel presented Article 46A Bis relating to Immunities and
explained that, pursuant to the relevant Assembly Decisions, this Article was introduced
in order to address the categories of individuals who should be covered by immunities
while serving their tenure.

25. During the consideration of Article 46A Bis of the Draft Protocol, delegations
raised concerns regarding extension of immunities to senior state officials and its
conformity with international law, domestic laws of Member States and jurisprudence,
underlining the challenges inherent in widening immunities, and especially considering
the lack of a precise definition of “senior   state   official”, as well as the difficulty in
providing an exhaustive list of persons who should be included in the category of senior
state officials.

26. After exhaustive deliberations, taking into consideration the relevant Decisions of
the Assembly of the Union, and appreciating that some senior state officials are entitled
to functional immunities by virtue of their functions, the meeting resolved that Article 46
A Bis should  include  the  provision  “senior  state  officials  based on their functions.”  The  
meeting  further  resolved  that  interpretation  of  “senior  state  official”  would  be determined
by the Court, on a case-by-case basis taking their functions into account in accordance
with international law. Thus, the revised text of Article 46A bis reads as follows:

Article 46A bis

“No   charges   shall   be   commenced   or   continued   before   the Court against any
serving African Union Head of State or Government, or anybody acting or entitled
to act in such capacity, or other senior state officials based on their functions,
during  their  tenure  of  office”.

27. At the end of the deliberations, the STC on Justice and Legal Affairs adopted the
draft  Protocol  on  the  Statute  of  the  African  Court  of  Justice  and  Human  and  Peoples’  
Rights and recommended it for consideration by the Assembly through the Executive
Council.

XIII. CONSIDERATION OF THE DRAFT PROTOCOL TO THE CONSTITUTIVE ACT
OF THE AFRICAN UNION ON THE PAN-AFRICAN PARLIAMENT

28. The Legal Counsel presented the Draft Protocol to the Constitutive Act of the
African Union on the Pan-African Parliament (PAP) and pointed out to the meeting that
its mandate is limited to looking at Article 8(1)(a) and 8(2) in accordance with the
decision of the policy organs which called for more consultations on the legislative and
oversight powers of the PAP taking into account the current level of integration of the
continent.

29. Following the presentation, the Ministerial Meeting made observations and
comments as follows:
STC/Legal/Min/Rpt.
Page 7

i. There is a need to take into account the reality of the continent and the
integration objectives of the Union;

ii. The PAP should continue to exercise consultative and advisory powers for
the time being;

iii. There ought to be more confidence in PAP as a result of which it should be
granted power to legislate for the Union;

iv. There may be a need to articulate the legislative power in the Preamble of
the Draft Protocol;

v. The payment of the members of PAP should be the responsibility of the
Union and not the individual States Parties.;

30. The Legal Counsel made clarifications as follows:

a. The existing Protocol on PAP, in its Article 11, envisages legislative power
to be determined by the Assembly; however, the PAP currently only has
consultative and advisory powers, which was limited to the first Parliament;

b. That while legislative power is not mentioned in the Preamble, it is provided
for in Article 11 of the existing Protocol and in Article 8 of the Draft Protocol
under consideration;

c. The Draft Protocol aims to begin the incremental realization of the legislative
power  of  the  PAP  but  within  the  confines  of  the  Assembly’s  authorization  on  
the areas that the PAP may legislate or propose model laws;

d. That the current revision of the Draft Protocol has removed the contention
about the oversight powers of the PAP with regards to other organs of the
Union.

e. That the legislative power envisaged for the PAP under the Draft Protocol is
one to be determined by the Assembly only and thus would not be
controversial or aimed at eroding the sovereignty of any AU Member State.

31. At the end of its deliberations on the envisaged legislative power of the PAP, the
Ministerial Meeting adopted the Draft Protocol to the Constitutive Act of the African
Union on the Pan-African Parliament (PAP), paying particular attention to Article 8 (1)(a)
and 8(2) as revised. The meeting agreed that the PAP may exercise limited legislative
powers or propose model laws on the subjects/areas that the Assembly shall determine.
The meeting agreed on the amendment of Article 8 as follows: